Glenn Reynolds vs. Adam Winkler on "reasonable regulation"

Posted by David Hardy · 18 November 2007 01:25 PM

Some months ago, Prof. Adam Winkler of UCLA published Scrutinizing the Second Amendment, arguing that even with an individual right, almost all gun control measures would pass muster: review would generally be rational basis, and most would pass even strict scrutiny. He relies largely upon State case law.

Prof. Glenn "Instapundit" Reynolds of U. Tenn. has responded with Guns and Gay Sex: Some Notes on Firearms, the Second Amendment, and "Reasonable Regulation.". Reynolds argues that Winkler overlooked a significant line of case law that held keeping arms was an absolute right, while bearing them was subject to regulation (and later case law interpreted keeping to include much carrying, as well). He goes on to suggest that if courts merely took the expressly-guaranteed right to arms as seriously as they take gay sex, which has no such guarantee, they would have to conclude that reasonable regulation was very narrow indeed. If they do not, then their credibility will be seriously damaged: it would be apparent that the interpretation was driven by the desired outcome.

His reasoning looks correct, given the rather idiotic precedent, but the actual precedent is contadictory and, well, idiotic. There's a right to own, keep, transport, purchase, and maintain arms, but not to carry them? Should I

Moreover, it's alright to ban purely cosmetic attributes from a 'right to keep and bear arms' viewpoint, but just banning the appearance would violate the right to free speech for movie folk? I mean, I guess the 'laws must be necessary' thing was dead.

More and more I am convinced that the best protection we can give to the right to keep and bear arms is to push to change every state's firearms law to echo that which Alaska has--either that or amend the Second Amendment to say that the right to bear arms refers to a right "to carry openly or concealed" with no permit and subject to no restrictions (except within jails and prisons)--along with repeal of any and all restrictions on any type of semi-automatic or automatic handgun, shotgun, or rifle.